When You Can and Can't Fire Employees For Social Media Misbehavior

Pop quiz, hotshot. You're a manager at a BMW dealership. One day, someone drives one of your luxury cars into a pond. One of your employees takes a photo of the busted BMW. At a later date, you throw a special event to launch a new model. You decide to celebrate by offering clients free hot dogs and Costco snacks. The same employee is flabbergasted that you would expect potential buyers of high-end vehicles to scarf down a weiner and coke instead of caviar and champagne. He and other employees, who are dependent on sales commissions for their livelihood, complain about this among themselves and to you in a staff meeting. During the event, they take photos posing skeptically in front of the hot dog stand. Your employee posts photos of the water-logged BMW and the sucky snacks in a Facebook photo album with appropriate snarky comments. Can you fire that employee?

Answer to come. Next question. You've left BMW for a promising job as a manager at Wal-Mart. After you're hired, one of your employees posts to Facebook about the new "tyranny" at the store, suggesting that the Wal-Mart is about to "get a wake up call because lots of employees are about to quit." Some co-workers express sympathy and ask what's wrong. The employee helpfully explains that you are a "super mega puta." Someone prints these comments up and delivers them to you. Can you fire that employee?

After a deluge of employee complaints about firings and discipline resulting from their social media use, the National Labor Relations Board has issued a report about the many cases in order to shed some light on when employers screwed up and when they didn't. As you know, the Constitution doesn't apply to private employers, so employees can't claim the right to freedom of speech. But all private employers must respect their workers' right to "protected concerted activity" -- in other words, the right to talk among themselves about their horrible working conditions. This right is not limited to union workers; it applies for all private employees.

If you decided above to fire the BMW worker, wrong answer. In that case, the employee was "vocalizing the sentiments of his coworkers" and expressing concerns that had already been raised by sales people at a staff meeting. That's concerted activity. If you decided to fire the Wal-Mart employee, right answer. Even though other co-workers chimed in with words of emotional support, the employee was expressing his or her own gripe. It was not concerted.

Last year, the NLRB got lots of media attention for bringing a complaint against an ambulance company for firing a driver who had complained about her bosses on Facebook. That seemed to be a wake-up call for employees who hadn't realized that they didn't have to be part of a union to be able to contest firings for badmouthing their bosses, says a NLRB spokesman. The NLRB's general counsel put together a "Report Concerning Social Media Cases" [pdf] (via Above the Law) because the agency has been getting so many inquiries from employers and employment lawyers about what exactly the rules are when it comes to social media. Here are a few more case studies to help guide your firing (if you're an employer) and your griping (if you're an employee)...

None of these cases have been decided by the Board yet, but the general counsel has separated them into categories of worthy of prosecution and not worthy. NLRB is hoping employers will read and learn. Here are a few of the sample complaints that the NLRB has received over the last year:

1. Two employees at a sports bar and restaurant complained about the bar's tax withholding policies on Facebook. (Seriously, that's a conversation you have on your Facebook wall? Boring.) One of the employees said something obscene about the fact that she now owed back taxes for 2010. The employees were fired for not "being loyal enough." NLRB is supporting their complaint -- that's a valid criticism of their employer, and protected activity.

2. A reporter at the Arizona Sun was fired "for posting unprofessional and inappropriate tweets to a work-related Twitter account." He had opened the account at the Sun's urging and identified himself as a reporter there in his lil' Twitter bio. He tweeted about how bad his paper’s copy editors were and got a warning. He later posted some insensitive things about area homicides and and criticized a local TV news station. That led to him getting the boot. The NLRB said that firing was okay, because there was no concerted activity goin' on.

3. A bartender was upset about the fact that waitresses didn't have to share tips with him even though he helped to serve food. He complained about the policy to another bartender and she agreed that it “sucked.” But they didn't raise the issue with management. At a later point, the bartender vented on his wall to a relative, complaining "that he hadn’t had a raise in five years and that he was doing the waitresses’ work without tips. He also called the Employer’s customers 'rednecks' and stated that he hoped they choked on glass as they drove home drunk." No coworkers chimed in, but when his bosses saw it, they cut him off (from employment). NLRB supported that firing, since this employee was on his own in his complaint on the wall, and crossed a line with that "choking on glass" remark.

One lesson I'm seeing here -- make sure your co-workers are on board if you're going to complain. If it's not a combined b****fest, you're likely going to get into trouble.